South Carolina: Following James Madison’s Advice to Nullify Obamacare

In South Carolina, an effort is currently underway to nullify Obamacare. The tip of the spear nationally, H3101 introduced by Representative Bill Chumley won’t totally collapse the federal act in one fell swoop. But if passed into state laws there, it will mark the beginning of the end for Obamacare if other states follow South Carolina’s lead.

This bill is so good that the George Soros-funded ThinkProgress.org has been attacking it as “an insidious new form of Obamacare nullification.”

That should be a huge green light for Obamacare opponents to support South Carolina H3101 and replicate it in their own states.

— Pay that mandate penalty. It’s coming
— Expect an SC exchange further helping Obamacare nationally
— No mechanism to do anything in the future

DIGGING DEEPER

1. H3101 specially bans creation of an exchange. The bill prevents all state and local governments from establishing an exchange under Obamacare. It prevents them from participating in an exchange or purchasing insurance from one. It makes any insurance contracts “purchased or established in violation” of that part of the law void and unenforceable by the courts of the state.

CATO institute Obamacare expert Michael Cannon explains the power of rejecting the exchanges in his publication, 50 vetoes. When enough states take just this step, Obamacare would be likely to crumble. READ IT HERE

2. H3101 crushes the individual mandate. The legislation provides for a state tax deduction in the amount of any mandate penalty that the IRS may issue. In other words, don’t follow the mandate. You can keep your money and you won’t be getting coerced. While a deduction won’t help you recover all the money the IRS has taken from you, the amount is still worthy of note, and will act as a significant motivator for many people to simply ignore the mandate. The Soros-backed ThinkProgress is VERY upset about this part of the bill, because they know that if people don’t participate in the mandate, the federal act is done for.

3. It bans the state from participating in unconstitutional provisions of Obamacare and by default creates a political mechanism for the state to make that determination. The ban is spelled out in Section 2 of the legislation and would be amended to be part of the state code. It reads, “No agency of the State, officer or employee of this State, acting on behalf of the state, may engage in an activity that aids any agency in the enforcement of those provisions of the Patient Protection and Affordable Care Act of 2010 and any subsequent federal act that amends the Patient Protection and Affordable Care Act of 2010 that exceed the authority of the United States Constitution.”

The policy intent of the legislation creates an atmosphere for follow up legislation to declare additional provisions to be unconstitutional which would require, by H3101, that they shall not be enforced. It’s going to take work over time. But Rome didn’t fall in a day – and stopping Obamacare will certainly not happen with just one state bill.

4. It increases the ability of the State executive to interpose and refuse to enforce. Section 1 of the bill includes a number of statements that are not amended into the State Code of laws. (1976 Code). The section begins with: “The General Assembly declares that authority for this act is the following…”

These are known, legally, as declaratory statements and do not hold the force of law (as they’re not part of the code of laws). They do, however, show legislative intent. Clause 5 of this section makes it easier for the Executive branch to step up and try to interpose against (BLOCK) Obamacare. It reads: “The General Assembly of South Carolina has the absolute and sovereign authority to interpose and refuse to enforce the provisions of the Patient Protection and Affordable Care Act of 2010 that exceed the authority of the Congress.”

The nature of the three branches of government dictates that the executive branch carries forth legislative enactments. All the legislature can do is make statements of policy intent and pass laws. The executive branch must carry them out.

While this clause doesn’t actually require the executive to interpose, it provides additional policy backing to any attempt to do so. Consider this clause an encouragement.

The legislature says where to strike. The executive swings the hammer.

DETAILS

The greatest concern shared by friends about the legislation appears to be in Section 1, the “declaratory” clauses of the legislation. As stated above, declaratory statements in Section 1 don’t hold the effect of law like the text of Section 2 that will be amended into the 1976 Code of the State of South Carolina. But, since they show a policy intent, it’s good to see what’s there. In general, the intent in the bill is actually very good for nullification. Here’s the main clauses:

1. “The Tenth Amendment to the United States Constitution provides that the United States federal government is authorized to exercise only those powers delegated to it in the Constitution.”

This is self-explanatory. And it’s good that the General Assembly is going on record in support of the 10th Amendment limiting federal power – strictly – as a policy objective.

2. Article VI, Clause 2 of the Constitution of the United States provides that laws of the United States are the supreme law of the land provided that they are made in pursuance of the powers delegated to the federal government in the Constitution.

This is VERY good. The entire establishment takes the view that all federal laws are supreme and the fact that a state would correct them all on this is extremely good. This goes beyond what most states are doing. (learn more about the supremacy clause here)

3. It is the stated policy of the South Carolina General Assembly that provisions of the Patient Protection and Affordable Care Act of 2010 grossly exceed the powers delegated to the federal government in the Constitution.

and

4. The provisions of the Patient Protection and Affordable Care Act of 2010 which exceed the limited powers granted to the Congress pursuant to the Constitution, cannot and should not be considered the supreme law of the land.

This kind of statement is exactly what Thomas Jefferson and James Madison both referred to when advancing the principles of nullification and interposition back in 1798. The core? The federal government cannot be trusted to police itself. Therefore, the states must – and do – have a role to determine constitutionality of federal acts. This is a big deal and very good.

Some would have you believe that because the policy statement in H3101 isn’t taking the position that all of Obamacare – every last word of it – is unconstitutional – that you should oppose the bill. This is absurd. That would be like opposing a bill nullifying federal background checks on firearms because that same bill didn’t also nullify every other federal law on firearms.

Opposing a step forward like this gives political cover to people like Nancy Pelosi – who want to force Obamacare on you.

The fact that the Assembly is willing to make constitutional determinations on a federal act already ruled constitutional by the supreme court is historic. No other state is doing this. None. South Carolina is taking the lead.

5 The General Assembly of South Carolina has the absolute and sovereign authority to interpose and refuse to enforce the provisions of the Patient Protection and Affordable Care Act of 2010 that exceed the authority of the Congress.

Some friends of the effort have warned that this declaratory clause is “dangerous” because it creates a situation where the General Assembly – and only the General Assembly – is authorized to “interpose and refuse to enforce.” In other words, they warn, the Governor, sheriffs and other government officials would actually be prevented from interposing and refusing enforcement.

Legally, this is wrong. As stated above, these declaratory statements are not going to be part of the 1976 Code of South Carolina – so therefore, do not hold the force of law. They do, however, show an intent of the Assembly. Had the assembly attempted to make is part of the 1976 code that it held the “exclusive” sovereign authority to interpose and refuse to enforce, it would have been Reductio ad absurdum. Reduced to absurd, that is, because the assembly actually can’t do the interposing – the executive, or other state actors have to carry that part out.

On the other hand, as mentioned above, this policy statement actually strengthens the ability of the state executive to “interpose and refuse to enforce.”

Why? The nature of the three branches of govt dictates that the executive branch carries forth legislative enactments. All the legislature can do is make statements of intent and pass laws. The executive branch must carry them out. The legislature says where to strike. The executive swings the hammer.

Here are the levels of executive power :

1) Implied powers that run contrary to legislative enactment.
2) Implied powers where there is legislative silence.
3) Action pursuant to state law.
4) Action pursuant to specific constitutional directive.

Since the declaratory statement doesn’t specifically refer to an “exclusive” power of the General Assembly to act, this is a general policy objective of the general assembly. And who carries out that policy? The executive branch.

This policy statement falls between #2 and #3 above, giving the South Carolina executive additional authority to “interpose and refuse to enforce” than what was there without H3101.

H3101: JEFFERSON AND MADISON APPROVED

Some in the General Assembly have indicated that they want to take a piece-by-piece approach to Obamacare nullification. That’s ok. Thomas Jefferson and James Madison did it that way with the initial American proposals for nullification and interposition against the Alien and Sedition Acts of 1798.

In fact, their initial effort was a non-binding resolution. They felt that what was first needed was to educate people on the role of the states in a) determining constitutionality and b) encouraging other states to join them in either nullification or interposition efforts over time. In some detail in those resolutions, they spelled out the provisions of the federal acts that were a violation of the constitution.

In some ways, South Carolina’s H3101 is a stronger step forward than the resolutions of 1798. It’s not non-binding. It’s law, and it’s a very aggressive first step in an effort to nullify Obamacare.

South Carolina isn’t waiting to build a consensus with other states before acting. They’re taking Thomas Jefferson’s advice on the next step and acting now – leading others to the cause.

THREE MORE STEPS NEEDED

This bears repeating. Rome didn’t fall in a day – and stopping Obamacare will certainly not happen with just one state bill.

While H3101 is a great Obamacare nullification bill in that it’s the first of its kind in the country and will have concrete results that will help bring the federal act down, additional work is going to be needed.

Here’s three steps that people in South Carolina – and elsewhere – will likely need to take.

1. Legislatively declare additional provisions of Obamacare which are unconstitutional – in order to ensure that the legal requirement to refuse enforcement in Section 2 of H3101 goes into effect.
2. Ban the Medicaid Expansion. And reject the 72 grants – even if it has to be one-by-one.
3. Get some better state legislators. While H3101 is a great bill as is, there was some serious opposition to it in the House, and there’s indications that the Senate doesn’t like it either. Our view is that it’s moving forward only because of intense grassroots pressure. Better legislators means that good bills will move forward without them having fear of losing their cushy gigs.

And here’s a bonus 4th step. Everyone in the country who supports the Constitution should get behind South Carolina. Like the fact that there isn’t a single perfect human being on earth, there’s also not a single perfect bill either.

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But H3101 is a great step forward, and opens the door for additional actions in the future.

James Madison advised exactly what South Carolina is doing with H3101. In Federalist #46, he wrote:

“Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps refusal to cooperate with officers of the Union, the frowns of the executive magistracy of the State; the embarrassment created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and were the sentiments of several adjoining States happen to be in Union, would present obstructions which the federal government would hardly be willing to encounter.” (Emphasis added)

It’s essential that other states rally to South Carolina’s aid by taking similar – or even stronger – steps that will “present obstructions” to Obamacare.

Then that unconstitutional federal act will be brought to its knees.

EDITOR’S NOTE: This article was a collaborative effort from multiple members of the TAC team.